Republic of Colombia

QUESTIONNAIRE ON PROVISIONS SELECTED BY THE COMMITTEE OF EXPERTS FOR ANALYSIS WITHIN THE FRAMEWORK OF THE FIRST ROUND

May 24, 2002

Carrera 8 No. 7-27, Bogotá D.C. Telephone 5601095 or 5657649. Fax 5658671. buzon1@presidencia.gov.co

COMMITTEE OF EXPERTS OF THE FOLLOW-UP MECHANISM FOR THE IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION

The 1991 Constitution generously enshrined provisions aimed at pursuing the efficient operation of Colombia as a democratic State, organized as a unitary, decentralized, democratic, participatory, and pluralistic Republic, with autonomous territorial entities, founded on respect for human dignity, work, the solidarity of its people, and the prevailing common good.

The essential purposes of the State are to serve the community, promote overall prosperity, and ensure the effective exercise of the principles, rights, and duties enshrined in the Constitution; and to facilitate participation by all people in decisions that affect them and in the economic, political, administrative, and cultural life of the Nation. Government authorities are appointed to protect the life, honor, property, beliefs and other rights and freedoms of residents of Colombia and to ensure fulfillment of the social duties of the State and of individuals.

The Constitution increases the responsibility of civil servants who, in addition to being accountable for violations of the Constitution and of laws, are also liable for omissions or abuses in the exercise of their functions. The law can establish several types of accountability, such as political (Articles 133, 135, 174, and 175), property protection (Article 90), criminal and disciplinary (Articles 92 and 268) and fiscal (Article 268).

Chapter I, Title II of the Constitution sets forth fundamental rights, which receive special protection from the State. It also enshrines social, economic, and cultural rights, collective rights, and environmental rights, which each have their respective protection mechanisms, including injunctions to protect constitutional rights, compliance proceedings, action for restitution judicial proceedings, and actions to protect human rights. The Constitution authorizes any natural or artificial person to call upon the competent authority to enforce criminal and disciplinary sanctions that may result from the conduct of public authorities.

As a tool to fight administrative corruption, Article 34 of the Constitution provides for termination of ownership of property acquired through illicit enrichment to the detriment of the Public Treasury.

Moreover, Articles 121 to 131 set forth provisions regulating civil service; they comprehensively indicate who qualifies as a civil servant and establish incapacities, incompatibilities, and prohibitions, as well as their form of entailment. Article 126 establishes a general framework that seeks to make the exercise of civil service transparent and lawful, while always striving to serve the community well, guarding against corruption. To that end, it prohibits persons from appointing relatives, establishes disqualifications and incompatibilities for entering into contracts with public entities, and bars the simultaneous holding of different government jobs.

On the same moral basis, Article 122 of the Constitution requires civil servants to report their property and income, to prevent and impede illicit enrichment. That same precept also stipulates that any person who has been convicted of crimes against State property is not eligible to perform civil service.

Articles 209 to 211 of the Constitution set forth provisions relating to administrative duties, which are to serve the common good and are implemented based on the interests of equality, morality, efficacy, economy, expediency, impartiality, and disclosure, by decentralizing, delegating, and deconcentrating functions; oversight bodies must take account of those interests. Article 125, in turn, deals with administrative career service.

Colombia’s political system has three branches of government, i.e. executive, legislative, and judicial. The former is run by the president of the Republic, who is the head of state, head of government, and top administrative authority. The national government is composed of the president of the Republic, the ministers, and the directors of the administrative departments.

Other components of the executive branch include governors’ and mayors’ offices, superintendencies, public institutions, and government industrial or commercial enterprises.

The legislative branch is composed of the Congress of the Republic, made up of the Senate and the House of Representatives. Congress is responsible for amending the Constitution, enacting laws, and exercising political checks on the government and administration.

The president can ask Congress to give him special powers to issue standards that have the force of law, when necessary or when advisable for the public good.

The justice administration organs are the Constitutional Court, the Supreme Court of Justice, the Council of State, the Superior Judicature Council, the Office of the Public Prosecutor of the Nation, the courts, and judges. Justice is also administered by the military criminal justice system and, in some cases, by the Congress. Individuals can temporarily be invested with the authority to administer justice as conciliators or arbitrators, under the terms set forth by law.

In addition to the organs in the branches of government, other autonomous and independent agencies fulfill other State functions. The various State organs have separate functions, but collaborate harmoniously to achieve their purposes.

The Office of the Attorney General (Ministerio Público) and Office of the Comptroller General of the Republic are oversight bodies. Operating in the former are the Prosecutor General of the Nation, the Public Defender, local attorneys and agents of the Office, municipal representatives, and any other officials set forth by law. The Office of the Attorney General is responsible for protecting and promoting human rights, protecting the public interest, and overseeing the official conduct of civil servants. The Office of the Comptroller General is responsible for monitoring fiscal management and controlling the output of the administration.

The electoral system is an independent branch composed of the National Electoral Council, the National Civil Registry Office, and any other agencies stipulated by law. It is responsible for organizing, managing, and overseeing elections and for aspects relating to the identity of persons.

For international treaties to take effect, they must be approved by the Congress. The Constitutional Court, in turn, is responsible for ultimately deciding on their implementability and that of the laws Congress enacts. If the Court finds them constitutional, then the exchange of letters, ratification, or accession can proceed, as appropriate. When the Constitutional Court finds one or more provisions of a multilateral treaty to be unenforceable, only the president of the Republic can state consent by formulating the corresponding reservation.

MEASURES AND MECHANISMS REGARDING STANDARDS OF CONDUCT FOR THE CORRECT, HONORABLE AND PROPER FULFILLMENT OF PUBLIC FUNCTIONS (ARTICLE III, 1 AND 2 OF THE CONVENTION)

a. Are there standards of conduct in your country for the correct, honorable and proper fulfillment of public functions? If so, briefly describe them and list and attach a copy of the related provisions and documents.

Yes, there are standards of conduct for proper, honest and proper fulfillment of public functions. They are contained in various provisions that define duties and prohibitions, and describe prohibited conduct. The most important of these provisions are dealt with below.

“Private individuals are only answerable for violations of the Constitution or of statutory law. Public officials, in addition to being answerable for such offenses, are answerable for failing to act or for abusing their authority in the course of their governmental duties.”

“Public administration exists to serve the common good and is based on the principles of equality, morality, efficacy, economy, timeliness, impartiality and public dissemination achieved through decentralization, delegation and deconcentration of functions.

Article 22. “Guarantee of performance in government service. Subject to disciplinary action for non-compliance with these provisions, public officials, in order to safeguard the public morality, transparency, objectivity, legality, honesty, loyalty, equality, impartiality, timeliness, public dissemination, economy, neutrality, efficacy and efficiency that they are required to observe in carrying out their jobs, responsibilities or functions shall, in accordance with the Constitution and statutory law, perform their duties, observe relevant prohibitions, and act in accordance with the regime governing disqualification, ineligibility, impediments and conflicts of interest established in the Constitution and in the law.”

Articles 23, 34 and 35 establish disciplinary offenses and define the duties and prohibitions applying to public officials.

Offenses against the government: Conduct considered to violate the integrity of public assets, public funds or activities of the State, with the active subject – i.e., the person carrying out the prohibited conduct – being generally a public official.

This is an offense committed by a public official who, as a part or as a result of his job, administers, has custody of or collects State assets, and who appropriates them, uses them improperly, uses them in a non-standard official manner or allows them to be mislaid, lost or damaged. This offense may also apply in cases where the public official is responsible for the custody of private parties. The various types of embezzlement are as follows:

This offense is one committed by a public official who, exceeding his authority or abusing his position, compels or induces someone to give or promise money or some other item of value to himself or a third party. It is defined in Article 404 of the Penal Code.

This offense is one committed by a public official who accepts or expects to receive money or some other item of value for delaying or failing to carry out an act associated with his position, or to carry out an act contrary to his official duties, or who accepts money or some other item of value from a person who is involved in a proceeding which said public official is handling.

Article 405. Embezzlement for individual gain.

Article 408. Violation of the legal or constitutional regime of disqualification and ineligibility.

This offense occurs when, for his own benefit or for the benefit of a third party, a public official improperly uses influence deriving from his position or function in order to produce a benefit in a matter that he is handling or may be expected to handle. This offense is defined in Article 411 of the Penal Code.

This concerns a public official who profits unjustifiably or allows someone else to do so as a result of his job or within two years of leaving it. Described in Article 412 of the Penal Code.

This concerns a public official who, in exercising his duties, carries out an act, decision or concept demonstrably contrary to the law, or who fails to, delays, refuses to or declines to carry out an act associated with his duties. The standards defining this offense are:

Articles 416 to 424. Included here are arbitrary and unfair acts, failure to report an offense, divulging secret information, using information that is secret or restricted, making improper use of privileged information, providing advice or other illegal actions, intervening in political matters, illegally use of the police and failure to provide assistance.

· Improper use of information or influence deriving from the exercise of public functions.

Article 432. Improper use of influence deriving from the exercise of public functions.

Article 434. Association for the commission of an offense against public administration.

“Fiscal management. For the purpose of this law, fiscal management shall mean the totality of economic, juridical and technological activities carried out by public officials and private persons who handle or manage public resources or funds, involving the appropriate and proper acquisition, planning, preservation, administration, custody, exploitation, sale, consumption, adjudication, expenditure, investment or disposition of public assets, as well as the collection, management and investment of their proceeds in order to promote the essential goals of the State, subject to the principles of legality, efficiency, economy, efficacy, equity, impartiality, morality, transparency, public dissemination as well as the principle which requires that environmental costs be assigned an economic value.

Article 36. “In any proceeding for offenses against public administration, it shall be mandatory that criminal proceedings be brought by the public law juridical person that has been harmed. “

Article 23. “Regarding the principles involved in the making of contracts by government entities. Those persons involved in making government contracts shall act in accordance with the principles of transparency, economy and accountability, and consistent with the principles set forth governing public administration. In addition, rules regarding the interpretation of contracts, general principles of law and the particulars of administrative law shall be applied in the standards governing the conduct of public officials.” Articles 24, 25, 26 deal with the principles of transparency, economy and responsibility.

Article 3. “Public administration shall conform to constitutional principles, in particular those relating to good faith, equality, morality, timeliness, economy, impartiality, efficacy, efficiency, participation, public dissemination, responsibility and transparency. These principles shall also be applied to the provision of public services to the extent to which they are compatible with the nature of and regulations covering said services.”

In addition to the provisions of the Disciplinary Statute, judges shall be subject to the present statute, which defines duties, prohibitions, impediments, disqualification and ineligibility, and conflicts of interest that apply to officials of the judicial branch.

Article 263. “Commitments and accountability. The members of the legislature represent the people and shall act in accordance with principles of justice and the common good. They are politically accountable to the society and the voters for meeting the obligations that their offices entail.”

The previous government’s policy included distribution to governmental agencies of an ethics manual designed to reinforce ethical values. Said values are dealt with in this directive, which provides guidelines for governmental agencies to carry out training in ethics for public officials, so that self-regulation may become the norm. The ethics manual has been distributed to all agencies of the national government, and the Presidential Program to Combat Corruption has been available to advise them, while it has also monitored enforcement. The Presidential Program has also been available to sub-national governmental agencies for advisory support.[1]

To date, 98 government entities have carried out values training and created their own code of ethics, as indicated in the manual. Twenty-six entities are currently engaged in this process. In the defense sector, the Presidential Program provided aid to 28 agencies, following which a process was undertaken in which a uniform code was created for all civil and military personnel in those agencies. The process includes standards that have not been imposed, an ongoing, dynamic process in which ethical values for the public sector are created by defining the principles and values for which public officials are accountable.

“Program to Revitalize Public Administration: Toward a Communal State”

The current government, which recently took office, issued this directive last August 20 because it considered that the legitimacy of the Colombian government had suffered from the effects of corruption, clientism and politicking. The directive sets forth the foundation and guiding principles that public officials are to follow as part of the modernization of public administration—a process which this government is going to carry out through short-, medium- and long-term activities designed to create a new public-sector culture, promote transparency and integrity in management as well as austerity, encourage participation by civil society and accountability in public administration, promote results-oriented management in the public sector, etc.

As part of its strategy of participating in government programs and activities designed to encourage transparency and morality in public administration, this Department has produced the following items, the contents of which may be seen at www.dafp.gov.co

- The book “Riesgos de Corrupción en la Administración Pública” [Risks of Corruption in Public Administration]

- “Cartilla Guía para la elaboración de los Mapas de Riesgos de corrupción” [Pamphlet with guidelines for the creation of corruption risk maps], with support from the World Bank

- Preparation of a CD with a Proposed Methodology for Identifying Risks of corruption

In accordance with Presidential Directive 09 of 1999 (“Strategies for the Anti-Corruption Program”), the Department has carried out the following activities in support of the development of morals and ethical principles and values training for public officials from 1999 to the present:

b. Does your country have mechanisms to enforce compliance with the above standards of conduct? If so, briefly describe them and list and attach a copy of the related provisions and documents.

Reactive mechanisms have been established to enforce compliance with said standards. These include sanctions for non-compliance; disciplinary, criminal and prosecutorial procedures as set forth in the Uniform Disciplinary Code, the Penal Code, and Law 610 of 2000, which deals with fiscal responsibility, as well as standards covering action for restitution, bringing criminal proceedings and action for restitution. In addition, there are many mechanisms that act as incentives for public officials to perform their duties properly, including the civil service system, orientation and re-orientation programs for public officials, the voluntary ethical conduct codes dealt with in Presidential Directive 09 of 1999 (referred to in the response to the previous question), as well as tools that are available to citizens to ensure that public officials properly perform their functions (see response in chapter IV of this questionnaire).

The code applies to all public officials, including those who are retired from service.

Articles 44 and 45 set forth categories of sanctions and define the sanctions.

Articles 34 and 35. Regarding sentencing. Sentences imposed according to this code take precedence over, replace, and obviate other applicable laws when the latter do not operate as primary.

“Definition. Fiscal responsibility includes all administrative activities carried out by Offices of the Controller General in order to identify and establish the responsibility of public officials and private individuals who, in exercising or in connection with fiscal management, by some act or by an act of omission, cause, in a willful or negligent manner, harm to the assets of the State.”

In which the State takes ownership without consideration or compensation of any sort to the owner. This applies to public officials as well as to private individuals.

This law provides for regulation of matters set forth in Article 90 of the Constitution.

Article 2.- “Action for restitution. This is a civil action for monetary payment taken against a current or former public official who, as a result of fraudulent or grossly negligent conduct has provided indemnity on behalf of the State, arising from a sentence, conciliation or other form of terminating a conflict. Such action is taken against an individual who, entrusted with public duties, has fraudulently or in a seriously culpable manner, has caused there to be monetary reparation.” [3]

Article 36.- “In any proceeding for offenses against public administration, it shall be mandatory that criminal proceedings be brought by the public law juridical person that has been harmed.”

Article 296. Basis. Removal from office occurs as a result of violation of the regime of disqualification or ineligibility, conflict of interest provisions, improper use of public funds, duly proven trafficking in influence, failure, during one legislative session, to attend six (6) plenary sessions in which votes are taken on legislative bills or censure motions, or failure to take office within eight (8) days following the opening of the legislative session, or following the date on which legislators were to take office.

“Article 1.- The civil service system is a technical system for personnel management, the object of which is to ensure efficiency in public administration and provide equal opportunity for access to public employment, provide training, ensure job stability and ensure possibilities for promotion.”

“Article 2.- Governing principles: In addition to the principles of morality, efficacy, economy, timeliness, impartiality and public dissemination, as set forth in Article 209 of the Constitution, civil service shall be based on the principles of equality and merit.

As mandated in the Anti-corruption Statute, evaluation forms for all career public officials in government agencies are provided as part of the process of establishing objectives, monitoring said public officials, and (a third document) providing for overall evaluation. There are also mechanisms to reward the best public officials.

Articles 24, 25 and 26 establish incentives for public management , creating the Success Bank, the National Award for Excellence in Management, which is given for excellence in institutional performance, and rewards for public officials who distinguish themselves by their efficiency, creativity and merit in carrying out their duties, without prejudice to being eligible for incentives provided for in other provisions.

Article 64.- “All government agencies shall have an orientation program for personnel entering the agency, as well as a biennial reorientation program for existing officials. These programs are to cover, among other things, standards governing limits to authority, disqualification, conflict of interest, standards affecting administrative morality, and issues specifically addressed in the present law.”

This statute creates the Uniform Personnel Information System (SUIP), which makes information available for the control of corruption in personnel management in government agencies.

Finally, it should be noted that one important mechanism in enforcing standards consists of the criminal records information held by the Administrative Security Department and the records managed by the Registry, Supervision and Correspondence Division of the Office of the Attorney General of the Nation.

c. Briefly indicate the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available.

- SUPREME JUDICIAL COUNCIL: In 2001, 2,703 cases were presented to the Supreme Judicial Council, of which 2,281 were initiated by indictments from the Public Prosecutor. A total of 1,036 judges were convicted, and 275 were acquitted.

- COUNCIL OF STATE: To date, 312 requests for removal from office have been received, of which 38 have been granted.

a. Does your country have standards of conduct regarding the prevention of conflicts of interest in the performance of public functions? If so, briefly describe them, indicating aspects such as to whom they apply and the concept on which they are based, and list and attach a copy of the related provisions and documents.

To prevent private interests from interfering with public duties, the Constitution and the law set forth a series of requirements and restrictions for those who have performed or are currently performing duties in public positions. These requirements and restrictions are commonly referred to as disqualifications and conflicts of interest, and are set forth in various provisions, some of which apply specifically to particular jobs. These standards are based on the importance of promoting honorable conduct in politics and government and altering customs to ensure that they are ethical and moral. The general standards appear in the following documents:

· THE CONSTITUTION

Articles 126, 127, 128 and 129 cover, in a general form, issues of disqualification and conflict of interest relevant to all public officials.

Our disciplinary legislation provides for disciplinary sanctions in the case of public officials, or private individuals temporarily performing government duties, who violate prohibitions, impediments, ineligibility and conflict of interest provisions.

Articles 33 to 41. These articles incorporate in the code, by reference to the Constitution and statutory law, the disqualifications, impediments, ineligibility and conflict of interest provisions covered therein.

· GOVERNMENT CONTRACTING STATUTE – Law 80 of 1993

Article 8 states that public officials, as well as persons related in specified ways to them, may neither participate in bidding or compete for government contracts nor be party to such contracts.

Articles 279, 280, 281,282 and 283 cover disqualification and conflict of interest.

“Article 286.- Application. When a member of Congress, the member’s spouse or other permanent partner, a blood relation up to the fourth degree of consanguinity or relation by marriage of the second degree of affinity or less or civil relation of the first degree, or a legal or de facto partner or partners of the member has a direct interest in the decision because it affects said party or parties in some manner, then the member shall disqualify himself or herself from participating in debate and voting on the matter in question.”

b. Does your country have mechanisms to enforce compliance with the above standards of conduct? If so, briefly describe them and list and attach a copy of the related provisions and documents.

Violation of standards of disqualification and ineligibility, and conflicts of interest is punishable according to the disciplinary and/or penal provisions applicable to each such case, as indicated in section 1b of the Anti-corruption Statute, which includes a tool—a curriculum vitae—to aid in detecting possible disqualification and ineligibility. Criminal and disciplinary records, mentioned above, are also an important mechanism for the purpose. In addition, as mentioned above and as set forth in Article 183 of the Constitution and Article 296 of Law 5 of 1992, a member of Congress may be removed from office. In all cases, complaints by the special oversight bodies and the community in general are important, as well as actions taken by oversight bodies. The communications media are very important in this respect, and Article 76 of the Anti-corruption Statute requires that their role be protected and supported by public officials.

ANTI-CORRUPTION STATUTE – Law 190 of 1995

“Any person who seeks a government position or job, or who seeks a contract to provide services to the government, must submit to the personnel unit of the agency involved (or to the office which performs that function for the agency in question) complete background information in the uniform format designated for the purpose."

Among other things, work experience must be indicated, as well as the absence of any fact or circumstance that may imply disqualification or ineligibility in relation to the position, job or contract sought, in the sense of those terms set forth in the Constitution and relevant laws.

Appointment to and holding of office without fulfilling the above requirements.

c. Briefly state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available, for your country.

- OFFICE OF THE ATTORNEY GENERAL OF THE NATION (See general statistics, referred to above).

- PUBLIC PROSECUTOR OF THE NATION (See general statistics, referred to above ).